Euthanasia, aiding suicide and cessation of treatment

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Law Reform Commission Commission de réforme du droit
of Canada du '"anada

euthanasia,
aiding suicide
and cessation
of treatment

CanadSf

Digitized by tlie Internet Arcliive

in 2012 witli funding from

University of Ottawa

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REPORT 20

EUTHANASIA,

AIDING SUICIDE

AND

CESSATION OF TREATMENT

Available by mail free of charge from

Law Reform Commission of Canada

130 Albert St., 7th Floor

Ottawa, Canada

KIA 0L6

Suite 310
Place du Canada
Montréal, Québec

H3B 2N2

Catalogue No. J3 1-40/1983
ISBN 0-662-52653-8

©Minister of Supply and Services Canada 1983

REPORT

ON

EUTHANASIA,

AIDING SUICIDE

AND

CESSATION OF TREATMENT

July, 1983

The Honourable Mark MacGuigan, P.C., M.P.,
Minister of Justice

and Attorney General of Canada,
Ottawa, Canada.

Dear Mr. Minister:

In accordance with the provisions of section 16 of the Law Reform
Commission Act, we have the honour to submit herewith this report, with
our recommendations on the studies undertaken by the Commission on
euthanasia, aiding suicide and cessation of treatment.

Yours respectfully.

^^(^.^.£j2^cr^

Francis C. Muldoon, Q.C.
President

Réjean F. Paul, Q.C.
Vice-President

Louise Lemelin, Q.C.
Commissioner

Alan D. Reid
Commissioner

i

~r\

Joseph Maingot, Q.C.
Commissioner

Commission

Francis C. Muldoon, Q.C., President
Réjean F. Paul, Q.C., Vice-President
Louise Lemelin, Q.C., Commissioner
Alan D. Reid, Commissioner
Joseph Maingot, Q.C., Commissioner

Secretary

Jean Côté, B.A., B.Ph., LL.B.

Coordinator of the Protection of Life Project
Edward W. Keyserlingk, B.A., B.Th., L.Th., S.S.L., LL.M,

Special Consultant

Jean-Louis Baudouin, Q.C., B.A., B.C.L., D.J., D.E.S.

Table of Contents

FOREWORD 1

INTRODUCTION 3

PART ONE: The Need for Reform 7

PART TWO: The Proposed Reform 15

I. Euthanasia 17

A. The Voluntary Aspect 17

B. The Mercy Aspect 18

II. Aiding Suicide 20

III. Cessation and Refusal of Treatment 22

PART THREE: Summary of Recommendations

and Explanatory Notes 29

I . Euthanasia 31

II. Aiding Suicide 31

III. Cessation and Refusal of Treatment 32

Foreword

In the fall of 1982, the Law Reform Commission published
Working Paper 28, entitled Euthanasia, Aiding Suicide and
Cessation of Treatment.

Since then an extensive consultation took place with members
of the public, the legal profession and representatives of the health
sciences. Numerous conferences and seminars on these issues
have afforded an opportunity to present and test the positions
outlined in the Working Paper.

As a result of the many comments, suggestions and criticisms
received from Canada and abroad, the Commission has been
encouraged to re-evaluate some of its tentative positions, and it
would hke to extend its sincere thanks to all those individuals and
organizations who responded so generously to our call for
comments. This Report is a clear indication of the weight which
the Commission attaches to those comments and suggestions.

Introduction

Two brief preliminary observations may serve as an
introduction to the complex problems associated with euthanasia,
aiding suicide and cessation of treatment.

First, the legislative recommendations contained in this Report
to Parliament are clearly and unequivocally set within the
framework of the criminal law. The Commission's primary
objective, as represented by this Report, was to carry out a critical
examination of certain provisions of the Criminal Code to
determine whether they were adequate to deal with the problems
raised by contemporary medical and technological advances. The
reform proposed by the Commission is thus limited in its scope. It
affects certain criminal law provisions without necessarily affecting
other federal or provincial laws and regulations. The proposed
reform in no way precludes a provincial legislature from regulating
other aspects of the matter as it sees fit, within the ambit of its
legislative jurisdiction. For example, when the Commission
expressed the view in Working Paper 28 that an incompetent
individual ought to have greater protection in decisions concerning
his body, his life and his death, it proposed some general criteria
but also referred to the fact that there are various provincial
regulations respecting legal capacity. Similarly, when the
Commission suggested that the physician should bear the ultimate
responsibility for deciding to discontinue a treatment which had
become medically useless, it assumed and stated that this decision
should be made in consultation with the patient's next of kin,
family or friends.

The Commission's role is the reform of federal law in general
and criminal law in particular. With regard to the latter, the
Commission's basic goal is to set out as clearly as possible the
limits of what is humanly and socially acceptable, and to propose a
minimum standard of conduct which could not be violated without
incurring a sanction reflecting certain fundamental values embodied

in the law. The proposed reform is not designed to regulate the
decision-making process in the area of cessation of treatment, nor
to prevent individuals or institutions from setting up procedures to
ensure not only a minimum of respect for the rules, but an
optimum development of the values these rules represent.

For example, the Commission only estabhshes a minimum
standard of criminal liability when it recommends that a physician
not be deemed to have committed a criminal act because he
discontinues treatment considered medically useless. This rule
would not preclude a hospital setting up a consultation committee
on the issue, or hospitals and health professions requiring in their
codes of ethics or regulations that the doctor should formally
consult the patient's family and obtain the advice of other
physicians and health care professionals. The Commission is aware
that hospital practice and various codes of ethics are already
moving in this direction.

A second preliminary observation is also in order. The
criminal law sets general standards of conduct for all citizens. It
offers a relatively general guide to conduct, because it cannot
always take into account particular circumstances. The fact that
the Commission proposes certain amendments to the present
Criminal Code does not mean that once these reforms have been
adopted, the doctor, the nurse, the hospital, the lawyer or the
patient will necessarily find therein a detailed guide for solving the
complexities inherent in every individual case. In matters of life
and death, of consent to acts involving the human body and of
decisions to discontinue treatment, every case is special and
generalization alone is not enough. It would be an illusion to
believe that criminal law reform alone can provide a
comprehensive guide for making medical decisions. The decision
to treat or not treat must continue to be made in response to both
general standards and the particular circumstances. Criminal law
alone cannot provide a detailed road map for decision-making; it
cannot prescribe all the factors which should be taken into
account. It only establishes general rules of conduct at the "outer
limits" of what society permits and forbids. That is both its
usefulness and its limitation. Accordingly, it is important that this
Report not be regarded as a comprehensive question-and-answer
book or check-list for decision-making in every individual case. On
the other hand, the Commission believes that its recommendations
will eliminate some misunderstandings, that they will indicate what

weight should be attached to certain basic principles and legal rules
and that they will assist those who must make this type of decision
on a daily basis in difficult circumstances. These recommendations
also attempt to clarify the rights of patients and enable them to
know more readily what they are entitled to expect and insist upon
from the medical profession.

PART ONE:

THE NEED FOR REFORM

The onus is on those suggesting a change, it is said, to show
that the change is desirable and represents an improvement over
the existing situation. The consultations held between the
publication of Working Paper 28 and the drafting of this Report
provide clear evidence that the legal profession, the public and
those working in the health professions are in favour of legal
reforms or at least clarifications in the area of euthanasia, aiding
suicide and cessation of treatment.

Without necessarily espousing the views expressed in the
Working Paper, lawyers, university professors and scholars who
were consulted agreed that the present Criminal Code provisions
are ambiguous and vague, and much in need of revision. The Bar
of one province has even made a formal recommendation to that
effect.

Certain provisions, including sections 14, 45, 198, 199 and 229
of the Criminal Code, were drafted at a time when the specific
problems confronted in this paper had not then arisen. For
example, modern medical technology was not yet available to the
medical profession. Sophisticated and scientific palliative care was
either unknown or at best in its infancy. Indeed, the very practice
of medicine and hospital management was radically different from
what it is now.

Those provisions, drafted in general language, were adequate
to meet the problems of the era for which they were conceived.
However, they were never supplemented, as they perhaps should
have been, by amendments adapting them to changed realities.
The Commission believes that these Criminal Code sections now
need to be re-examined and revised in the light of current
conditions and problems. Consultations carried out by the
Commission have served to confirm this view. A legal scholar
commenting on Working Paper 28 aptly observed that the legislator
must now provide judges and courts with a clearer indication of
legal policy in this area rather than forcing them to guess at it on
the basis of outdated laws.

Moreover, the Criminal Code provisions which are the object
of the Commission's reform proposals have never really been
subjected to a sophisticated and clear judicial interpretation in the
context of these life-and-death issues. It is possible to undertake a
lengthy theoretical discussion to determine the interpretation which

the courts might apply to a given word or section of the Criminal
Code. It may indeed constitute an interesting and stimulating
exercise. However, in real life and perhaps to an even greater
extent in criminal law, rules should have a certain degree of
predictability, especially in matters as crucial as the life or death of
an individual. The great majority of those consulted felt strongly
that clarification of existing law was overdue. Moreover, many of
those who were not convinced of the need for amendments
nevertheless had to admit that they could not predict with any
certainty what interpretation the courts might give to particular
provisions if applied in the current medical context regarding a
decision to cease life-supporting treatment.

The view that reform is needed and even urgent is shared by
medical and hospital personnel and others working in the health
professions.

Health care professionals, perhaps because they are less
accustomed than lawyers to reading and interpreting legal
provisions, have frequently indicated how ambiguous, imprecise
and vague they find the existing provisions of the Criminal Code.
They have also told us that a number of sections, namely sections
45 and 199, seem to cast real doubt on the legality of various
medical and hospital practices. We believe that these concerns are
genuine and serious and sometimes have a very negative impact on
medical practice. The ambiguities and doubts encourage some
physicians to be excessively conservative in the practice of
medicine. As one of those consulted told us, referring to section
199 of the Criminal Code, there are two alternatives. One is to
hope that the present law does not actually mean what is seems to
say and to practice medicine as it should be practiced, that is, in
the patient's best interests. The other is to believe that the law
intends to say what it does and therefore to practice a defensive
type of medicine, one which is not always in the best interests of
the patient.

Even if in practice there are hardly any criminal prosecutions
in the medical context, this legislative imprecision nevertheless
encourages uncertainty and tension which is to everyone's benefit
to eliminate.

In effect we were told by many of those consulted that on
such important issues the law should not speak in riddles, but

10

rather should set out clearly and precisely, in language accessible
to the general public, the exact parameters of permitted behaviour.
The Commission agrees with that view.

The Commission believes that these reform proposals are
useful and meet a genuine need. As will become apparent, these
proposals do not represent a complete overhaul of the traditional
legal rules, but rather a clarification and necessary supplement to
them. The proposed reform will undoubtedly not completely
eliminate the possibility of conflict and uncertainty. It would be
naive to think so. The Commission believes, however, that the
reform will have achieved its main objective if the proposed
amendments allow everyone to better understand the limits
governing conduct in these matters, and enable courts to identify
more clearly the basic principles underlying the revised legislative
policy.

These basic principles were discussed at length in Working
Paper 28 and in other documents published by the Law Reform
Commission in the Protection of Life series. They may be briefly
summarized here. The first is that in the medical context the
presumption in favour of life should always be recognized. Our law
regards the protection of human life as a fundamental value. Any
law reform must be based on that value. The proposed system of
rules should never depart from the principle that in the absence of
reasons to the contrary the patient should always be presumed to
want to live, and that the patient would prefer life to death even
when unable to express that preference. In practical terms, this
principle may be expressed by the rule that if a treatment is
reasonable and useful for the purpose of preserving the health or
life of a human being, it should be assumed that a patient unable to
express a choice would choose to receive the treatment and not to
refuse it. Accordingly, a physician should normally have a duty to
treat an unconscious patient admitted to hospital. This principle
and presumption does not however oblige extraordinary measures.
First of all, the presumption is not absolute and, secondly, it
applies only if the proposed treatment is reasonable and useful.
But according to this first principle the onus is on those who stop
or do not initiate life-supporting treatment to provide justification
for that decision.

The second principle is that of the patient's autonomy and
right to self-determination. The Commission, which has repeatedly

11

upheld this principle, continues to be of the view that it should be
explicitly affirmed in law. Within the bounds of public order,
morality and the rights of others, human beings must remain
masters of their fate. They should therefore have the right, based
on the notion of free and informed consent, to make decisions
concerning themselves. No one should have the right to impose
such decisions on patients against their will. The law should
clearly acknowledge this right to autonomy and self-determination,
and penalize any interference with it.

It is interesting to note that only one person among those
consulted argued in favour of compelling a competent patient to
undergo treatment.

A third principle which any reform proposals should
acknowledge is that human life should be considered not only from
the "quantitative" perspective, but also from the "qualitative"
perspective. When patients freely choose to refuse treatment, their
choice is often based upon quality-of-life considerations. In the
Commission's view such considerations should be respected. We
believe that the law should now clearly recognize the right of
patients, exercising their free and informed choice, not to
undertake treatment if they feel it would deprive them of, or not
provide, an adequate quality of life for the time remaining.
Inasmuch as such a decision is based on a value-judgment, there is
room for argument when patients are unable to express wishes
because they are too young or too old, or are unconscious or
mentally handicapped. As the Commission emphasized in its
Working Paper, the law should provide special measures to protect
the incompetent. It should also be noted that all provinces
currently have specific provisions for the exercise of what is called
in law substituted consent. It is not the Commission's task to
scrutinize these laws and regulations or to substitute its judgment
for that of the provincial legislators. The Commission can only lay
down a rule or general standard of conduct for criminal law
purposes. Incompetent patients in every province of Canada have
various means to enforce their rights when they are infringed
upon. Moreover, the very definition of what constitutes legal
incapacity varies from province to province.

The Commission wishes to prevent the possibility that a
patient's inability to give or refuse consent would seem to impose
on the physician a legal duty to provide aggressive treatment. If

12

the quality of life is a value which the law should always respect,
then it should also be respected and weighed when the patient is
incompetent.

These are in brief the main principles underlying the proposed
reform recommended by the Commission in Working Paper 28.
Months of consultation have demonstrated that in Canada there
currently exists a broad consensus regarding these principles. The
dissenting views, which will be examined below, tend to apply
especially to the question of enforcement. Some feel, for instance,
that the principle of personal autonomy is so important that it
would justify an individual's demand for assistance in committing
suicide and that, therefore, such assistance should be completely
decriminalized.

In concluding Part One of this Report, we should again recall
the precise role played by legislative reform. One should not
expect the lawmaker to provide a detailed and definitive guideline
or manual to enable physicians to decide in a mechanical fashion
whether he can or cannot discontinue treatment. All that the
lawyer, or the health care professional, or the patient or the
general public is entitled to expect from the legislator are general
guidelines indicating the path to take and the path to avoid. Should
a case involving these issues be brought before a court, it would be
left to the court to determine whether or not the conduct of the
accused conformed to the law by evaluating the special nature and
circumstances of that case.

13

PART TWO

THE PROPOSED REFORM

In its Working Paper, the Commission asked three basic
questions:

(1) Should active euthanasia be legaHzed, or at least
decriminalized?

(2) Should aiding suicide be decriminalized by the repeal of
section 224 of the Criminal Code?

(3) Should sections 14, 45, 198, 199 and 229 of the Criminal
Code be revised to define the legal parameters of the
refusal and cessation of medical treatment?

Generally speaking the vast majority of those consulted
believed that these questions were well formulated and to the
point. In these final recommendations to ParHament, it is
appropriate therefore to consider each of them again, partly in the
light of the proposals and criticisms responding to the earlier
Working Paper on these issues.

I. Euthanasia

The word "euthanasia" is somewhat ambiguous and has
several possible meanings. Hence it is appropriate to explain what
we mean by the term whenever it is used. For the purposes of this
Report, euthanasia will mean the act of ending the life of a person,
from compassionate motives, when he is already terminally ill or
when his suffering has become unbearable.

A. The Voluntary Aspect

The Commission's final posifion remains that even if such a
patient requests that he be killed, such an act should not be
legalized. With few exceptions, the comments received have all
supported the Commission's position in this matter. A country Hke
Canada could not, without violating its social traditions and
history, tolerate and give a legal veneer to a policy of active
euthanasia, not even voluntary euthanasia.

17

The argument will undoubtedly be raised that if persons are
the masters of their own bodies, they ought to have the right to
demand that society allow someone else to end their life if it has
become unbearable. We cannot and need not repeat and review
here the pro and con arguments explored in detail in the Working
Paper. As maintained in that Working Paper, the legalization of
euthanasia is unacceptable to the Commission because it would
indirectly condone murder, because it would be open to serious
abuses, and because it appears to be morally unacceptable to the
majority of the Canadian people. The Commission believes that
there are better answers to the problems posed by the sufferings of
the terminally ill. The development of palliative care and the
search for effective pain control methods constitute a far more
positive response to the problem than euthanasia on demand. To
allow euthanasia to be legalized, directly or indirectly, would be to
open the door to abuses, and hence indirectly weaken respect for
human life.

The Commission therefore recommends against legalizing or
decriminalizing voluntary active euthanasia in any form and is
in favour of continuing to treat it as culpable homicide.

B. The Mercy Aspect

As the Commission stated in Working Paper 28, when the
actor's chief motive for killing is compassion for that suffering
person, there are three possible options by way of legal response:
to preserve the status quo; to create a special category of
homicide; or to add a specific provision aimed at mitigating the
sentence.

The Commission received many comments on this subject.
None were in favour of complete decriminaHzation. Responses
favouring one or another of the three options were roughly equal in
number, although the supporting arguments were quite varied.

Those in favour of the first and third options were agreed on
one thing: a specific offence should definitely not be created. The
reasons given were several. Some argued that a door to a number
of problems and abuses would thereby be opened. Some
maintained that the inclusion of motive as one of the elements of
an offence would result in an extremely complex evidentiary

18

problem — that of reaching a precise determination of the ''purity"
of the motives of the accused. In the opinion of some this would
be quite impossible. The Commission does not necessarily agree.
It believes, and current criminal law in fact bears this out, that it is
indeed legally possible, though difficult, to prove the motive behind
an accused's act.

The creation of a specific offence for mercy killing is
technically compatible with the present law. But is it compatible
with our traditions? As one of our correspondents noted, adding
another type of homicide to the Criminal Code is not really a
solution, since the enforcement of such a provision is bound to
create difficulties in practice. How could the offences of ordinary
murder and mercy killing be effectively distinguished if the only
real difference between the two is to be found not in the intent to
kill but in the proof of motive? One group of scholars has
suggested that mercy killing be made a lesser offence included in
that of culpable homicide.

Many of our correspondents, however, especially those not
belonging to the legal profession, were adamantly opposed to any
change. A change either in the definition of the offence or in
sentencing would, in their view, amount to accepting a devaluation
of human life. The most prevalent fears were the dangers posed by
any weakening of legislative poHcy. Proponents of the first option
felt that any change would open the door to abuses of all sorts.

As previously stated in the Working Paper, the Commission
feels that formulating a fair and just solution of this issue is far
from easy. Each of the options has its defenders and arguments in
its favour, and in the final analysis the choice is a matter of
personal conviction, at least on an individual level. However, the
choice of policy must be made in harmony with general legislative
policy on the criminal law.

All things considered, the Commission agrees with those who
feel that the law on this point should not be altered, and that
mercy killing should not be treated as a separate or included
offence, nor entail as of right a reduction of sentence. It should be
recalled that our legal system has internal regulating mechanisms
which offset the apparent harshness of the law. It is possible that
in some circumstances the accused would be allowed to plead
guilty to a lesser charge. We also feel that our trial system, and

19

the conclusions and verdicts reached by our juries, should be
trusted. Finally, in truly exceptional cases, the authorities already
have it within their discretion to decide not to prosecute.

The Commission therefore recommends that mercy killing not
be made an offence separate from homicide and that there be no
formal provision for special modes of sentencing for this type of
homicide other than what is already provided for homicide.

II. Aiding Suicide

One of our correspondents brought to our attention an incident
involving a charge laid under section 224 of the Criminal Code
("Counselling or Aiding Suicide''). Twenty years ago in Northern
Canada charges were laid under that section against a certain
Inuit. The accused had helped one of his elderly parents load the
rifle with which the latter finally killed himself. The accused was
found guilty and given a suspended sentence.

The Commission's tentative recommendation was that the
offence of aiding suicide should be retained, even if in practice it is
rarely invoked. To reinforce the present approach of restraint in
appealing to this section of the Code, and to accentuate the
exceptional nature of such a charge, the Commission recommended
that prosecution on the basis of this section should be permitted
only on written authorization from the Attorney General.

This recommendation touched off a lively debate among those
we consulted or who sent us their reactions and observations.
With two exceptions, all our correspondents were in agreement
that the offence of aiding suicide should remain in the Code. A
number of correspondents wrote in effect that although one may
sympathize with a person who assists a terminally ill family
member or friend to end his life, such sympathy should not
necessarily be translated into an explicit approval of the legality of
that assistance. Moreover, there can be other cases in which
aiding suicide is done for far less altruistic motives, and which do
warrant a legal penalty.

20

The Commission agrees with that view and does not recommend
that aiding suicide be decriminalized.

What, however, of the recommendation requiring the written
authorization of the Attorney General in order to prosecute?
Contrary to the Commission's expectation when drafting the
Working Paper, this suggestion encountered fairly strong
opposition. These objections led the Commission to review its
position and to withdraw this particular recommendation.

The first objection, cogently expressed by one of our legal
correspondents, was that in this case it is preferable to let the law
take its normal course. Decisions made by the Attorney General
about whether or not to prosecute may be perceived, no doubt
erroneously, as having political overtones. In life-and-death
matters, it may not be advisable to make such a sensitive legal
matter depend upon a decision which could be interpreted as
politically motivated. Another correspondent suggested that the
decision about whether or not to prosecute should not be left in the
hands of the Attorney General himself, but rather with his regional
representative. Although we agree that this suggestion could go a
long way towards dispelling the above objection, we feel that it
does not wholly remove the possibility of misunderstanding.

The second objection, which appears equally serious to the
Commission, is that if prosecution of the offence were to depend
on the Attorney General's authorization, significant differences in
the manner in which the law is enforced in the various provinces
could be expected. Here again, our correspondents felt that such
differences involving fundamental issues and principles, might give
the impression that life does not have the same value everywhere
in Canada.

Finally, on a practical level, the Commission considers that
since this offence is almost never prosecuted, requiring an
additional procedure would amount to its de facto abolition. In
conclusion, for the reasons given above and in the Working Paper,
the Commission's view is that the offence should not be removed
from the Code or revised.

The Commission therefore recommends retaining section 224 of
the Criminal Code in its present form.

21

III. Cessation and Refusal of Treatment

The Commission found near unanimous approval for the
proposal originally made in Working Paper 26 and repeated in
Working Paper 28. Any competent person should have the right to
refuse treatment of any kind and to insist that treatment already
begun be discontinued either temporarily or permanently. In other
words, treatment should never be imposed against a patient's will.
The physician's duty in such a case is to inform the patient of the
options open to him and of their consequences, and consent to
treatment or to its discontinuance must adhere to the guidelines
established by court decisions to date, that is, it should be
informed and freely given. If these requirements are satisfied, then
whatever personal reasons motivate a person to accept or refuse a
given course of treatment should not be questioned by physicians
or courts and the individual's freedom of choice should be
universally respected.

Provision for the formal and explicit recognition of this
principle in the Criminal Code was widely supported. The first
subsection of the Code amendment proposed below, subsection
199.1(fl), contains our recommended addition to do just that.
However, it was not considered advisable to add a provision
specifying that physicians who treat patients against their wishes
commit a specific criminal offence. Treatment by force or the
continuation of treatment already undertaken against the wishes of
the patient constitutes an assault, an offence already provided for
and penalized under the appropriate provisions of the Criminal
Code. Furthermore, this act is also a tort, or a delict in civil law,
giving rise to civil remedies.

Our recommendation concerning palliative care also received
unanimous approval. Some felt that it was the most important
recommendation in the Working Paper. It was brought to our
attention however that palliative care may sometimes be very
aggressive and that, here too, it is important to be assured of the
patient's consent or the consent of those who are responsible for
making decisions concerning that patient. Palliative care is subject,
in fact, to all the rules governing medical treatment, including the
requirements that it be reasonable and that consent must be sought
and provided.

22

Some of our correspondents drew to our attention an
infelicitous expression on page 71 in Working Paper 28 regarding
palliative care. The Commission agrees with its correspondents
that the current provisions of the Criminal Code should not
prevent a physician from undertaking or continuing palliative care
when necessary, only because it might have an effect on the
patient's life expectancy. Our proposed section 199.2 now clearly
accommodates the proposition just stated.

The Commission therefore recommends that it be specified in
the Criminal Code that a physician cannot be held criminally
liable merely for undertaking or continuing the administration
of appropriate palliative care in order to eliminate or reduce the
suffering of an individual, only because of the effect that this
action might have on the latter's life expectancy.

If, as we believe, the opinion of our correspondents is
representative of the Canadian people as a whole, it is clear that
there is a desire to eliminate the ambiguity unintentionally created
by the present wording of section 199. Interpreted literally, it
appears to place an unqualified duty on the physician to continue
treatment once he has begun it, even if the treatment in question
has become useless or unreasonable. On this question, too, the
Commission's proposals received the support and approval of our
consultants, subject to certain objections pertaining to matters of
form.

The Commission therefore recommends an amendment to the
Criminal Code to remove the ambiguity created by some of the
current provisions, in particular by section 199.

The longest and most complex discussions revolved around
the problems posed by the non-initiation or the discontinuance of
treatment with people who, because of their age, their state of
unconsciousness or mental handicap are unable to give a valid
consent. The recent Dawson case in British Columbia has fueled
debate and has undoubtedly increased public awareness of the
issues involved. Accordingly, a systematic review of the general
principles which should govern any attempts to resolve these
complex problems is in order.

On the basis of submissions from various organizations
representing those suffering from mental handicaps, the

23

Commission remains convinced about the soundness of the
tentative proposal in the Working Paper. The law must avoid and
guard against any involuntary discrimination against handicapped
people. A person's inability to give consent should not be invoked
to deny to that person the rights granted to competent individuals.
In the context of this discussion, a person's incompetence alone
should not oblige or empower a physician to begin or continue a
therapeutically useless treatment when its only result will be to
prolong unnecessarily the patient's agony. Incompetent persons,
like all others, have the right to die with dignity, assisted by
whatever palliative care is needed. Accordingly, the law should
attempt to eliminate any difference in that regard between a
competent and an incompetent person. In either case, the
continuance or initiation of useless or inappropriate medical
treatment should not be promoted or condoned by criminal law.
Heroic or aggressive therapeutic measures which would not be
used in the case of a competent person, should also not be used in
the case of an incompetent person.

The Commission also reaffirms the position it expressed on the
subject of newborns in its Working Paper. The decision to treat or
not to treat should be made on the basis of the medical facts of
each case and in the best interests of that newborn patient, not for
eugenic reasons. For example, the Commission feels that it is a
physician's duty to perform corrective surgery for atresia of the
digestive tract in the case of a trisomie newborn if the risks of the
operation are acceptable and if, apart from the trisomy 21, there
are no other serious and incurable defects. The decision ought to
be made according to whether the problem can be corrected or
not, and by considering the newborn's quality of life, just as would
be the case for an adult patient. If, according to the present state
of medical science, the seriously handicapped newborn is already
dying, he or she should be treated in the same way one would treat
a conscious or unconscious terminally ill adult. However, if the
infant could benefit from a form of treatment which offers
reasonable hope for an acceptable quality of life, then that
treatment should be provided. The Commission is well aware of
the ambiguity in the expression, "acceptable quality of life". In
medical practice the resolution of this dilemma seems to present
fewer difficulties for the adult patient. It also acknowledges that it
is essentially a question of fact, the differences in each case
making generalization impossible. It is as well a question of sound
medical judgment based not only on medical experience, but also

24

on consultation with the appropriate party or parties, such as the
parents, the spouse, the family and the next of kin. The purpose of
criminal law is not to tell the physician how to act in each and
every case. It exists only to draw general lines and punish abuses.
In each particular case it is up to the courts to determine whether
or not a particular decision was reasonable and acceptable under
the circumstances. A decision that would only prolong the dying
patient's agony would not be reasonable in the Commission's
opinion; nor would a decision be reasonable which would force a
newborn or adult to undergo an exceptional series of operations or
treatments, resulting in great suffering, only to end up with a
medically unacceptable quality of life. On the other hand, the mere
existence of a physical or mental handicap in a newborn, even if
serious, should not be a pretext to refuse treatment on the basis of
what are essentially eugenic considerations.

A third question meriting discussion here is that of substituted
consent for those incapable of expressing their wishes. It is a
difficult problem and the Commission is particularly grateful to
those correspondents who helped to shed light on the principles
involved or who submitted a variety of typical cases for our
consideration.

The Commission stated in its Working Paper that there are
essentially three systems or mechanisms for ensuring consent to
treatment or to discontinuance of treatment for persons themselves
incapable of making or expressing that decision. We stated that we
would take a definitive position on the question in the report to
Parliament. The first mechanism could be called the "judicial
model". The decision would be made either by a judge or by a
quasi-judicial body, such as a hospital committee. A large majority
of our correspondents were against resorting to institutionalizing
such a system on the grounds that it can be unwieldy, complex
and, above all, inappropriate for dealing with the type of decision
which has to be made. The ideal decision-making model for such
cases is in fact one which seeks a consensus among the various
people involved (the physician, other involved health care
professionals, the family and the next of kin). A confrontational
model of the adversary sort is clearly not ideal under normal
circumstances. Rejection of this first model as the normal decision-
making mechanism does not mean, however, the elimination of
any recourse to the courts. Should any of the parties be opposed
to or in disagreement with a decision to treat or not to treat an

25

incompetent patient, it should always be possible to ask a court to
resolve the conflict in order to provide the best available protection
to the patient. But what we wish to emphasize is that, solely from
the point of view of criminal law, there appears to be no point in
requiring that every decision concerning the treatment of an
incompetent person be automatically subject to a formal and initial
order by a court or quasi-judicial body. We have no intention of
excluding the involvement of courts in this type of decision when
the exceptional need arises.

A second possible decision-making mechanism is to allow
those who represent the incompetent person (e.g. next of kin,
parents, curator, guardian and so forth) to make the decision by
themselves alone for the incompetent person. This solution is
favoured by a number of individuals and organizations in Canada at
the present time. The Commission sees two possible dangers if this
approach were to prevail. The first is the unfairness involved in
placing an extremely heavy psychological burden on those who are
perhaps not really in a position to bear it. The second is the
possibility that conscious or unconscious conflicts of interest might
arise, risking an injustice being done to the incompetent person.

This explains why the Commission recommended that the
decision be primarily medical in nature, believing that there is no
ideal solution and that, all things considered, this option remains
the least unsatisfactory. It must be noted, however, that a
rejection of the second solution as the basic legislative policy
naturally does not mean the exclusion of those persons from the
decision-making process. On the contrary, even if the physician
must remain ultimately responsible for the decision in the eyes of
the law, the decision must necessarily be made after discussion,
explanation and consultation with those close to the patient. This
option, which the Commission maintains in its final
recommendations, merits further explanation.

In the first place, we do not intend and indeed we are not
empowered to express an opinion on the matter as a whole. Many
aspects of medical treatment for the incompetent come wholly or
in part under provincial jurisdiction. Each province has particular
laws and regulations relating to the rights and protection of infants,
and which regulate the powers of parents, tutors and guardians.
The Law Reform Commission therefore cannot and does not wish
to express an opinion on the content of such provincial legislation.

26

The sole question which the Commission may ask itself is the
following: When may a person be held criminally liable for
discontinuing or failing to initiate medical treatment for an
incompetent person? The Commission's answer is the following:
Such liability should not exist when the discontinuance or non-
initiation is based on a vaHd medical decision, that is, one which is
reasonable in the circumstances, is in the best interests of the
incompetent person and in conformity with other standards set by
criminal law.

The requirement proposed by the Commission is therefore
necessarily a minimum requirement, only what is necessary for an
acceptable standard of criminal liability. As a minimum standard
for purposes of criminal liability, it in no way precludes the
adoption of more detailed and sophisticated formulas which could
offer the incompetent patient more protection. Quite the contrary.
The following are some examples. A formal decision regarding
treatment must be made by the physician on the basis of medical
facts and expertise, but it can and should be made after
consultation with the family, the spouse, the next of kin or tutor,
or guardian. Such a decision can also be made and normally is,
after an independent second medical consultation. It may be made
or contributed to by an interdisciplinary hospital committee. All
that the criminal law seeks to ensure is that the physician has made
a reasonable decision in terms of his expertise, the medical data
and the particular circumstances. It is not within the scope of
criminal law, which can only dictate a general standard of conduct,
to say exactly how that decision should be reached, what advice
may be sought and who may participate in the decision-making
process.

Nothing of course should preclude anticipatory recourse to a
court, as in the Dawson case, in order that the appropriateness and
legality of a contemplated medical decision may be determined,
especially when there is an obvious conflict of opinion among the
interested parties about what should be done.

On the other hand, since it is physicians who normally bear
the onerous burden of possible criminal liability, it is only fair to
clarify for their sake the rather ambiguous provisions of the
Criminal Code. We hope the proposed amendments do just that.

The Commission therefore recommends that a physician should
not incur any criminal liability if he decides to discontinue or

27

not initiate treatment for an incompetent person, when that
treatment is no longer therapeutically useful and is not in the
person's best interest.

28

PART THREE

SUMMARY OF RECOMMENDATIONS

AND

EXPLANATORY NOTES

29

I. Euthanasia

The Commission does not favour the legalization of euthanasia
in any form. That is the view expressed in the following two
recommendations, both discussed earlier in the Report:

The Commission recommends against legalizing or
decriminalizing voluntary active euthanasia in any form and is
in favour of continuing to treat it as culpable homicide.

The Commission recommends that mercy killing not be made an
offence separate from homicide and that there be no formal
provision for special modes of sentencing for this type of
homicide other than what is already provided for homicide.

II. Aiding Suicide

The Commission does not favour decriminalizing the offence
of aiding or counselling suicide. In Working Paper No. 28 it
tentatively recommended that, ''[n]o person shall be prosecuted for
an offence under the present section without the personal written
authorization of the Attorney General". However, in this Report,
for reasons explained earlier, the Commission has omitted that
particular recommendation. On the subject of aiding or counselling
suicide, the following recommendation expresses the Commission's
final position:

The Commission recommends that aiding suicide not be
decriminalized, and that section 224 of the Criminal Code be
retained in its present form.

31

III. Cessation and Refusal of Treatment

The Commission recommends the following amendments to the
Criminal Code:

199.1* Nothing in sections 14, 45,
198, 199 and 229 shall be interpreted as
requiring a physician

(a) to continue to administer or to
undertake medical treatment
against the expressed wishes of the
person for whom such treatment is
intended;

(b) to continue to administer or
undertake medical treatment, when
such treatment has become
therapeutically useless in the
circumstances and is not in the
best interests of the person for
whom it is intended.

This provision is essentially similar to what the Commission
proposed in Working Paper 28. The few changes which have been
made merit brief commentary.

The addition of section 229 to the proposed section was made
at the suggestion of one of the legal groups consulted. Section 229
of the Criminal Code creates the offence of administering noxious
things or poison to someone. Although it is highly unlikely that
this provision would be applied in medical matters, it was thought
advisable to include it since it is at least potentially applicable.

The adverb "clearly" has been removed from both paragraphs
of the proposed provision. In the Working Paper both paragraphs
referred to, "...the clearly expressed wishes... ". Represen-
tatives of one of the provincial Bars convinced us that this word

* This provision was drafted in the context of the current Criminal Code. If the
Code is completely revised, the provision will remain the same except that the
beginning will be replaced by: "Nothing in this Code shall be interpreted...."

32

did not actually add anything and threatened to create difficulties
in interpretation. Accordingly, we have omitted it from the final
version.

Many of our correspondents criticized the use of the
expression, ''medically useless treatment", in the amendment
proposed by the Working Paper. It was suggested that this
expression has an excessively pejorative connotation used in this
context, in that it implies that the general practice in medicine is to
provide extraordinary treatment, or to "overtreat".

A treatment which is initially medically useful may become
useless at a certain later point from the therapeutic perspective. To
better express the idea that treatment is a continuum and to
underline the notion that at a certain point in time the same
treatment can become useless in terms of curing or improving the
patient's condition, we changed the expression "medically useless
treatment", to, "treatment [that] has become therapeutically
useless". The word "therapeutically" is used here in its ordinary
sense, that is, the intention is therapeutic when the aim is to treat
the patient for the purpose of curing or ameHorating his condition.

It should be noted that we have retained as an additional
condition, that the treatment in question is not required if it is not
in the best interests of the patient. It can happen that a treatment
that has become therapeutically useless, may nevertheless be
justified on the grounds of patient interests other than treatment of
the medical problem as such. The patient may, for example, wish
more time in order to see a relative for one last time, prepare a will
or put his or her affairs in order. These would be examples of
what in our view can constitute the "best interests" of the patient
in this context.

In response to another comment we decided to eliminate the
phrase "... except in accordance with the expressed wishes of
this person" from the second paragraph. It was felt that that
phrase might have been wrongly interpreted to mean that a
physician who refused to consent to a patient's express desire for a
treatment that was medically counter-indicated in the
circumstances could be held criminally liable just for not
continuing it.

33

Basically, then, the proposed amendment incorporates the
Commission's major recommendations. The first paragraph merely
expresses the present legal rule. Patients are masters of their own
decisions concerning themselves. If they have expressed a desire
to discontinue treatment already in progress or not to undergo
treatment, physicians must then respect that decision. This
expression of will is a question of fact. The patient can express it
orally or in writing, the latter for example by means of a "living
will". Though such living wills are without any binding legal effect
in Canadian jurisdictions, they may nevertheless serve as a basis
for the interpretation of a patient's wishes. Sanctions that might be
imposed on the physician if he bypasses the patient's wishes are
already contained in various provisions of the Criminal Code. In
any case, he could be charged with assault.

The second paragraph states the principle that a physician
cannot be charged under the provisions of the Criminal Code if he
ceases to administer a treatment or decides not to administer a
treatment which, in the circumstances, has become therapeutically
useless and not in the patient's interest. This would be the case,
for example, where artificial ventilation was continued for a patient
whose cerebral functions had already undergone irreversible
cessation.

This would also be the case when a physician who, in order to
avoid prolonging the death agony of one of his patients, decides to
discontinue antibiotics being given to treat his pneumonia. A
further example would be the case of a surgeon who decides not to
operate to correct a newborn's deformity because, even if the
operation were successful, the infant could not survive his other
medical problems.

For reasons explained earlier, this provision applies equally to
competent and incompetent patients. Moreover, it does not spell
out in detail how the physician should make the decision nor who
should be consulted. To comply with the general criminal law
standard, those details are not relevant, as long as it can be shown
that the treatment was therapeutically useful in the circumstances,
made in the best interests of the patient, and not against that
patient's wishes.

34

199.2* Nothing in sections 14, 45,
198, 199 and 229 shall be interpreted as
preventing a physician from undertaking
or obliging him to cease administering
appropriate palliative care intended to
eliminate or to relieve the suffering of a
person, for the sole reason that such
care or measures are likely to shorten
the life expectancy of this person.

As explained above, this provision is intended to eliminate any
ambiguity concerning the administration of palliative care. Thanks
to a very pertinent suggestion by a medical association, the only
change from the Working Paper formulation of this proposed
subsection, is a slight grammatical modification in the wording to
make it clear that the Code sections should not be interpreted as
obliging a doctor to cease palliative care already commenced.

This proposal simply expresses the idea that the physician's
duty is to provide patients with appropriate palliative care when
further therapeutic treatment would serve no purpose. For
palliative purposes, the appropriate use of drugs, medication or
other pain control treatment is legal and legitimate even if they
may have the effect of shortening the patient's life expectancy.

What was said in the note regarding section 199.1 also applies here.

35

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